Rain gardens built in Seattle’s Ballard neighborhood failed to soak up the water.Rita Hibbard/InvestigateWest

Just as state environmental officials are getting close to issuing long-awaited, court-ordered rules to rein in the largest source of toxic pollution of Puget Sound, developers and business interests are appealing to the Legislature to delay the process or make it entirely voluntary.

At issue is the toxic mix that washes off roads, parking lots and other hard surfaces in the rain, carrying with it the detritus of modern life: oil, grease, pet waste and metals such as copper, which can kill salmon, along with myriad other pollutants.

Ecology has calculated that the runoff is the leading source of toxic pollution of Puget Sound, and it’s an extremely common reason why water bodies in Washington are in violation of the Clean Water Act. It’s also a leading reason for closing shellfish beds and it can make swimmers sick.

The agency’s proposed rules contemplate controlling the polluted stormwater by changing development codes in 110 local governments in Washington so that the landscape does a better job of slurping up the dirty rainwater before it reaches waterways.

Under Ecology’s proposal, these local governments would have until Dec. 31, 2016 to revise development codes to encourage “low-impact development.” Ecology is tracking four pieces of legislation, two of which would delay the process by another two years. That would be on top of the one-year delay the Legislature ordered last year.

“It’s fair to say we’re under siege,” said Bruce Wishart, lobbyist for the environmental group People for Puget Sound. “It’s really disappointing after spending literally years at the table negotiating to encourage green building techniques and to move forward with what we considered some pretty modest proposals.”

Rules, or incentives?

One piece of legislation, HB 2641, would make it optional for local governments to adopt the low-impact building rules, and would instead offer incentives to cities and developers.

“We are simply continuing an ongoing effort to find a way to lessen the burden, streamline our local governments, make them more efficient and help them weather the budget crisis they are facing,” said the measure’s chief sponsor, Rep. Larry Springer, D-Kirkland, in legislative testimony. Springer serves as deputy majority leader for jobs and economic development.

The local governments that are the subject of the debate are those whose sewer and storm-drain systems serve fewer than 100,000 people. The state’s six largest local governments – King, Pierce, Snohomish and Clark counties and Seattle and Tacoma – already have started developing low-impact-development codes that are due to be finished by the end of 2013.

Environmentalists say the low-impact building techniques can actually save money in some circumstances – a point developers do not dispute – and are critical of Ecology for proposing to allow cities to pick their own techniques.

“Ecology was unwilling to step up to the plate,” said low-impact advocate Tom Holz, who has written low-impact-development codes for several local governments. “Ecology has told the local jurisdictions ‘We’ll go along with whatever you want. … Here’s check list of things you might impose and you get to choose, and then the Department of Ecology is OK with that.’ “

Bill Moore, Ecology’s lead stormwater strategist, said the agency wanted to ensure that local governments could have flexibility to make sure the techniques selected would work, given local conditions. Rulings by the state’s pollution court, the Pollution Control Hearings Board, require the low-impact building methods to be used where they are “feasible.”

Such techniques include installation of “rain gardens” that soak up excess stormwater, porous pavement that allows rainwater to seep into the ground, and vegetated roofs, also known as “green roofs.”

In a few instances, these techniques have gone awry, most famously in the Ballard neighborhood of Seattle, where rushed planning – necessitated by a bid to land some federal stimulus money – led to rain gardens that overflowed, becoming unsightly pools that one resident compared to bathtubs without drains.

“We’ve provided a framework in which the local governments should be making those decisions” about which techniques are suitable, Moore said. “The last thing we want is to require LID and find out it’s not working – it’s flooding the neighbor’s basement or something else that defeats its purpose.”

Other examples of potential problems caused by putting water into the ground, Moore said, include landslides on steep slopes and spreading around underground contamination at old industrial sites.

Wishart, the environmental lobbyist, said such failures have been limited to a handful of instances. In fact, his environmental group and others are promoting a campaign by Washington State University’s Puyallup stormwater-research arm and the nonprofit Stewardship Partners to have residents of the Puget Sound region install 12,000 rain gardens by 2016.

Carl Schroeder, a lobbyist for the Association of Cities, said Ecology is asking too much of local governments at a time when their finances are severely pinched.

“What we have heard from the cities who have been reviewing the proposed (rules) is that, especially on (low-impact development), they tried to do too much too fast,” Schroeder said. “We have folks who are not sure they can move that aggressively.”

Instead, the municipalities are advocating making the transition to low-impact development voluntary and offering a series of incentives for cities and developers.

Schroeder offered an example of how this could work for local governments: Right now cities must inspect catch basins every five years to make sure they are not contributing to stormwater pollution. New rules will make that once every 2 ½ years. But cities that adopt the voluntary low-impact building rules could stay on the more-relaxed inspection schedule.

For developers, those proposing to use the low-impact techniques might be entitled to expedited review of their permits by the city, or might be granted height or setback variances. Or perhaps they would enjoy reduced permit fees, Schroeder said.

“It would allow folks where it makes sense in their communities to move forward,” Schroeder said. “Others who don’t feel it’s appropriate for their communities could move forward more slowly.”

There’s just one problem with that approach, said Ecology’s Moore: It doesn’t pass legal muster. The Pollution Control Hearings Board made it clear that the next time the rules were tightened – as is happening now with the rules that are the subject of the comment period ending Friday – Ecology was to make low-impact development mandatory.

‘Because it is new, there is also great resistance.’

Wishart, of People for Puget Sound, also says low-impact development can’t be optional: “There are great advantages to this approach, but because it is new, there is also great resistance. If we could rely on a voluntary approach, we’d be there by now.”

One person who has crusaded tirelessly in favor of low-impact development is Art Castle. Yet he says Washington just isn’t prepared to go whole-hog right now. He’s against mandating the very methods he helped popularize as head of a builders’ group in Kitsap County before he moved to Olympia to lead the Building Industry Association of Washington. But he’s always been against making low-impact development the law.

And there are practical problems, Castle said. For example, to make low-impact development the standard operating procedure would require training thousands of engineers in the low-impact techniques, Castle said, yet the state’s Puyallup stormwater-research branch can train just 100 per year.

Noting that at least one lobbyist has proposed an additional four-year delay, Castle said the current rules should be kept in place until the economy recovers.

“Until you get that technical knowledge much more broadly (distributed) than it is today, we’ll have people who don’t understand (low-impact development) designing it, and people who don’t understand it approving it, and to me that’s a recipe for disaster,” Castle said.

The stormwater bills Ecology is monitoring are HB 2641, which makes low-impact development optional for the 110 or so cities at issue (companion: SB 6372); HB 2390 and HB 2338, which delay the process by two years; and SB 6014, which directs Ecology to submit a report on stormwater. To comment on Ecology’s proposed rules go to http://1.usa.gov/xBeQkL.

InvestigateWest is a non-profit, independent journalism center based in Seattle that covers the Northwest with a emphasis on environment, public health and government accountability. If you value this independent journalism, please help support InvestigateWest by making a tax-deductible contribution.

Robert is co-founder and executive director of InvestigateWest. At the Seattle Post-Intelligencer, Robert exposed a major weakness in the Endangered Species Act and deficiencies in Puget Sound restoration efforts. His reporting on hard-rock mining won the John B. Oakes Award for Distinguished Environmental Journalism. A longtime former board member of the Society of Environmental Journalists, he currently serves as chairman of the editorial board of SEJournal, the group's quarterly publication. Seattle Magazine in 2013 chose him as one of Seattle's "most influential" people.